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2000 DIGILAW 1124 (PAT)

Kariman Bhuian v. State Of Bihar

2000-09-15

ASHOK KUMAR VERMA

body2000
Judgment Ashok Kumar Verma, J. 1. The sole appellant Kariman Bhushan has preferred this appeal against the judgment and order of conviction and sentence dated 4.5.95 and 5.5.95 respectively passed in ST. No. 169 of 1993 of 1993 by the VIth. Additional Sessions Judge, Palamau at Daltonganj, whereby the accused-appellant has been convicted under Sec. 304, Part-II of and Sec. 323 of I.P.C. and sentenced to undergo rigorous imprisonment for six years under Sec. 304 Part-II, I.P.C. and to undergo rigorous imprisonment for six months under Sec. 323, I.P.C. The sentences are to run concurrently. 2. In short, the case of the prosecution is that on 2.12.1992, accused-appellant Kariman Bhushan was crushing sugar-cane in the Kolsar which is by the side of the house of the deceased and the informant. At about 10 p.m., the deceased Bipat Mochi, father of the informant Kail Mochi went to the Kolsar (Place for preparing Gur) and demanded the price for cock (murga) from the accused Kariman Bhuian had taken a cock from the deceased Bipat Mochi for which the price was due. Accused Kariman Bhushan started abusing the deceased to which he protested on which Kariman Bhushan assaulted the deceased on his head with Ghorthan which is used for stirring gur with intention to kill him, as a result of which the deceased Bipat Mochi sustained injuries on his head and he became unconscious. Jagpati Devi, sister-in-law of the informant went to save Bipat Mochi and accused Kariman Bhushan assaulted her also with Ghorthan causing injuries in her right hand. After assaulting the deceased Bipat Mochi and Jagpati Devi, the accused Kariman Bhuian fled to his house. The informant kept his father and sister-in-law at the house during the night and in the next morning, he took them to Panki Hospital for medical treatment, where his father was still unconscious and the fard-beyan of the informant Kail Mochi was recorded by S.I. Upendra Prasad, Officer Incharge of Panki P.S. on 3.12.1992 at 2.30 p.m. Fard-beyan is Ext. 1 on this case. On the basis of the fard-beyan formal F.I.R. (Ext.2) was drawn in this case under Secs. 323/325/307 to the I.P.C. After three days of the occurrence Bipat Mochi died and Sec. 302, I.P.C. was added in this case. After investigation police submitted charge-sheet against accused Kariman Bhushan under Secs. 1 on this case. On the basis of the fard-beyan formal F.I.R. (Ext.2) was drawn in this case under Secs. 323/325/307 to the I.P.C. After three days of the occurrence Bipat Mochi died and Sec. 302, I.P.C. was added in this case. After investigation police submitted charge-sheet against accused Kariman Bhushan under Secs. 323 and 302, I.P.C. The Chief Judicial Magistrate after taking cognizance of the case committed it to the Court of Sessions for trial. 3. The defence of the accused according to trend of cross-examination of the witnesses and the statement of the accused under Sec. 313, Cr.P.C. is that he has been falsely implicated in this case. 4. It was argued by the learned Counsel for the appellant that in this case no independent witness of the neighboring place has been examined by the prosecution and there is contradiction in the evidence of the two doctors who have been examined as witnesses in this case. The contention of the learned Additional P.P. on behalf of the State was that the prosecution has been able to bring home the charge under Secs. 304, Part-II and 323, I.P.C. against the accused Kariman Bhushan. 5. In this case, 10 witness have been examined on behalf of the prosecution. PW 7 Kisun Mochi and PW 8 Tusan Mochi have been tendered by the prosecution. PW 6 Chandradeo Bhuian has stated that he does not know anything about the occurrence. He has been declared hostile by the prosecution. PW 5 Ramji Bhuian has stated that he had not seen occurrence in the Kolsar. He has also been declared hostile by the prosecution. PW 2 is Sushila Kumari, the grand-daughter of the deceased Bipat Mochi. It was submitted by the learned Counsel for the appellant that the name of this witness (Sushila Kumari) has not been mentioned in the FIR which shows that she had not seen occurrence. Admittedly, the name of this witness Sushila Kumari has been mentioned in the charge-sheet as a witness. Every details and the name of all the witnesses is not expected to be contained in the FIR. As the name of this witness (Sushila Kumari) finds mention in the charge-sheet her evidence cannot be brushed aside only on the ground that her name has not been mentioned in the FIR. Every details and the name of all the witnesses is not expected to be contained in the FIR. As the name of this witness (Sushila Kumari) finds mention in the charge-sheet her evidence cannot be brushed aside only on the ground that her name has not been mentioned in the FIR. PW 2 Sushila Kumari has stated that she came out of her house where her Kolsar is situated and his grand-father was in that Kolsar and he demanded money of the cock (murga) from the accused Kariman Bhuian which he had purchased for worship in his Kolsar and accused Kariman Bhuian started abusing him. She has also stated that accused Kariman Bhuian assaulted her grand-father on his head with Ghorthan of the gur and he also assaulted her mother with ghorthan and due to assault her grand-father become unconscious and he died. She has said in her cross-examination that accused Kariman Bhuian had crushed sugar-cane for the whole day and on that day, the day of the Kolsar was over. The learned Counsel for the appellant submitted that when the Kolsar was closed after the day, it is not expected that the accused was present in the night there. She (PW 2) has said that on that day, the day of the kolsar was over. PW 4 Upendra Prasad the investigating Officer of the case has said in his evidence that he had Inspected the place of occurrence and had found over for preparing gur in the Kolsar and Kasah of iron was on the even for oven (Chulhas). This clearly shows that the materials of the Kolsarwere still there at the time of the inspection of the place of occurrence by the investigation Officer. Therefore, it cannot be construed that the accused was not present at the place of occurrence at the time of occurrence. 6. PW 10 is Dr. Vijay Kumar; a medical officer who has stated that on 3.12.1992 he was posted at Panki as Medical Officer and had examined Bipat Mochi and Smt. Jagpati Devi, wife of Sohrai Mochi. According to him, Bipat Mochi was brought in an unconscious state and he (PW. 6. PW 10 is Dr. Vijay Kumar; a medical officer who has stated that on 3.12.1992 he was posted at Panki as Medical Officer and had examined Bipat Mochi and Smt. Jagpati Devi, wife of Sohrai Mochi. According to him, Bipat Mochi was brought in an unconscious state and he (PW. 1) had found swelling over the left temporal region of the dimension 3" x 2" x 2" with a burise of 2" x 1" and an incised wound on the middle of parietal region of the scalp with irregular margin 1/4" x 1/2" x 1/8" and both the injuries were grievous caused by hard and blunt substance, which may be ghorthan. He has said that the condition of the patient (Bipat Mochi) was serious and he was referred to R.M.C.H. Ranchi. Ext. 4 is his injury report. Further, according to him, he had found swelling of 3" x 2" x 2" with a bruise of 1" x 1/2" over outer aspect of left arm of Smt. Jagpati Devi, wife of Sohrai Mochi and the injury was simple caused by hard and blunt substance, may be ghorthan Ext. 4/1 is her injury report. 7. PW 9 is Jawaharlal who had conducted post-mortem examination on the dead body of the deceased Bipat Mochi. He has stated that on 7.12.1992 he was posted as CAS at Sadar Hospital, Daltonganj and on that day, at 4.15 p.m. he had post-mortem on the dead body of the deceased Bipat Mochi and had found the following ante-mortem injuries. (I) Bruise 2 1/2" x 1 1/2" over upper part of the head vertex. (II) Bruise 1" x 1" over right parietal region of the head. On disSection there was haematama below the scalp in the upper part of the head and right parietal region and there was fracture of the upper part of the skull vertex region and on opening the skull, the skull cavity was found full of blood and there was laceration of the brain matter beneath the injury No. (I). Injury No. (I) and (II) both were caused by hard and blunt substance, may be ghorthan. In the opinion of PW 9 Dr. Jawaharlal who had conducted post-mortem examination on the dead body of the deceased, the death was due to shock and haemorrhage caused by the above-mentioned injuries. Ext. 3 is the post mortem report. Injury No. (I) and (II) both were caused by hard and blunt substance, may be ghorthan. In the opinion of PW 9 Dr. Jawaharlal who had conducted post-mortem examination on the dead body of the deceased, the death was due to shock and haemorrhage caused by the above-mentioned injuries. Ext. 3 is the post mortem report. 8 It was submitted by the learned Counsel for the appellant that PW 10 Dr. Vijay Kumar had found an incised wound out of two injuries, whereas according to PW 9, Dr. Jawaharlal both ante-mortem injuries were bruises. PW 9 Dr. Jawaharlal and PW 10 Dr. Vijay Kumar have stated that both the injuries were caused by hard and blunt substance. Admittedly, the deceased Bipat Mochi had died due to the above injuries caused to him. In view of the facts and circumstances of the case, the evidence of PW 9 and PW 10 cannot be disbelieved on the ground that Dr. Vijay Kumar (PW 10) has mentioned that one injury was an incised wound on middle of parietal region of the scalp. Both the doctors (PW 9 and 10) have clearly stated that both the injuries were caused by hard and blunt substance and they were grievous. PW 9 Dr. Jawaharlal who had conducted the post mortem of the deceased Bipat Mochi has said in his cross-examination that the injuries found are categorised as grievous. There is nothing in the cross-examination of these witness (PW 9 and 10) to disbelieve their evidence. The evidence of PW 9 Dr. Jawaharlal who had conducted post mortem examination on the dead body of the deceased Bipat Mochi shows that the deceased Bipat Mochi had died due to injuries caused to him. The evidence of PW 10 Dr. Vijay Kumar also shows that Jagpati Devi had simple injury on her person. 9. PW 3 is Kail Mochi informant of this case. He has stated that he, his father and Kariman Bhuian were in the Kolsar and his father demanded the price of the cock (murga) from Kariman Bhuian on which Kariman Bhuian abused him. He has said that accused Kariman Bhuian had assaulted his father twice with Ghorthan once on his head and once on his temple and at the time of assault, his niece Sushila Kumari and sister-in-law Jagpati came there and when his sister-in-law (bhabhi) protested, the accused assaulted her with ghorthan in her hand. He has said that accused Kariman Bhuian had assaulted his father twice with Ghorthan once on his head and once on his temple and at the time of assault, his niece Sushila Kumari and sister-in-law Jagpati came there and when his sister-in-law (bhabhi) protested, the accused assaulted her with ghorthan in her hand. According to him (PW. 3), accused Kariman Bhuian fled away to his house after the assault. He (PW. 3)has also said that his father had fallen down due to assault and had become unconscious and he took him to hospital on the next day at 7.00 a.m. where the Daroga had re recorded his (PW. 3)statement and had not read it over to him and he had put his thumb impression on it. It was submitted by the learned Counsel for the appellant that this witness has stated that the accused had assaulted his father twice, but in the F.I.R. it has not been mentioned that the accused had assaulted the deceased twice. It has been clearly stated in the fardbeyan (Ext. 1) of Kail Mochi that Kariman Bhuian had assaulted his father on his head with ghorthan with intention to kill him. In view of the facts and circumstances of the case, the evidence of this witness (PW. 3)cannot be disbelieved on the ground that it has not been mentioned in the FIR that twice the accused had assaulted the deceased. He (PW. 3)has said in his cross-examination that the accused and his father had more or less habit of taking liquor and at that time also, his father and accused had taken a little ligues. According to prosecution, accused had assaulted the deceased when he (deceased) bad demanded the price of his cock from the accused. So even if the accused had taken a little liquor, it cannot be inferred that the accused has not committed the offence as alleged. 10. PW 1 is Jagpati Devi an injured of this case. According to her, her father-in-law was in Kolsar in the night and she was at the house. The Kolsar is close to her house. Further, according to her, her father-in-law had demanded the price of cock (murga) from the accused Kariman Bhuian which he had taken for worship on crushing of the sugar cane. According to her, her father-in-law was in Kolsar in the night and she was at the house. The Kolsar is close to her house. Further, according to her, her father-in-law had demanded the price of cock (murga) from the accused Kariman Bhuian which he had taken for worship on crushing of the sugar cane. She has stated that the accused Kariman Bhuian did not pay the price of the cock and started hurling afuresand an altercation took place and the accused Kariman Bhuian assaulted her (PW. 1) father-in-law with ghorthan which is used for stirring gur. According to her, ghorthan contains nails also. She has also said that the accused gave one blow by the ghorthan on the head of her father-in-law and another blow on the right side of his head as a result of which her father-in-law became unconscious and when she tried to save him, accused assaulted her with ghorthan in her right hand. The evidence of this witness is supported by the evidence of PW 10 Dr. Vijay Kumarwho had found swelling of 3" x 2" x 2" with bruise of 1" x 1/2" over outer aspect of left arm of Jagpati Devi. According to the doctor, her injury was simple and caused by hard and blunt substance, may be ghorthan. She (PW. 1) has stated that she took her father-in-law to the hospital in the next morning where he died after three days. She has said in her cross-examination that the ghorthan was of a thin bamboo. Admittedly, bamboo is a hard and blunt substance and the Doctors PW 9 and 10 (Dr. Jawaharlal and Dr. Vijay Kumar) had found the ante-mortem injuries on the deceased and the injury of Jagpati Devi (PW. 1) caused by hard and blunt substance. The prosecution case and the evidence of PWs 1, 2 and 3 have been supported by the medical evidence of the two doctors PWs 9 and 10. Nothing has been elicited in the cross-examination of these witnesses (PWs 1, 2 and 3) to disbelieve their evidence. 11. PW 4 is Upendra Prasad, the Investigating Officer of this case. He has stated that on 3.12.1992, he was officer incharge of Panki P.S. and on that day, he had received OD slip from Panki Hospital and had gone there and recorded fardbeyan of Kail Mochi (PW. 11. PW 4 is Upendra Prasad, the Investigating Officer of this case. He has stated that on 3.12.1992, he was officer incharge of Panki P.S. and on that day, he had received OD slip from Panki Hospital and had gone there and recorded fardbeyan of Kail Mochi (PW. 3)and he had read it over to him and after finding it correct he (Kail Mochi) had put his thumb impression on it. Ext. 1 is the fard-beyan and Ext. 2 is formal FIR of this case. He has stated that he had gone to the place of occurrence and Kolsar is close south to the house of the informant and even for preparing gur was in the Kalsar, on which a karah of iron was there and south to the Kolsar was the machine for crushing sugar cane. According to him, he had recorded the statement of the witnesses. Injured Bipat Mochi had died when he was being brought by the informant to his house. He has also said that the doctor had advised to take him (deceased) to Ranchi for medical treatment. He has stated that the informant had brought the dead body to the police station and then he had recorded his father statement and after completing the investigation he had submitted charge-sheet. According to him, he had prepared the inquest report of the dead body of the deceased before Tusan Mochi and Birmal Sah. He has said in his cross-examination that he had prepared three copies of the inquest report and had sent two copies to the doctor and had kept one copy in the diary, but the third copy is not available in the diary. The postmortem report of the deceased Bipat Mochi is Ext. 3 in this case. The evidence of PW 9 Dr. Jawaharlal who had conducted post mortem on the dead body of the deceased Bipat Mochi has been discussed above. 12. Normally, the people do not want to associate themselves with criminal cases. The prosecution case cannot be disbelieved on the ground that witnesses of neighboring place have not been examined by the prosecution. 13. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that the accused Kariman Bhuian has committed the offences punishable under Secs. 304, Part II and Sec. 323 of the Indian Penal Code. The occurrence of this case is of 2.12.1992. 13. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that the accused Kariman Bhuian has committed the offences punishable under Secs. 304, Part II and Sec. 323 of the Indian Penal Code. The occurrence of this case is of 2.12.1992. So it is more than 7 years and 9 months since then and the accused had been under the shadow of the case for a long time. Therefore, in view of the facts and circumstances of the case the sentence of the accused-appellant passed under Sec. 304, Part II, I.P.C. is reduced to R.I. for years under Sec. 304, Part-II, I.P.C. There does not appear reason to interfere with the sentence passed under Sec. 323, I.P.C. 14. With above modification in the judgment and order of conviction and sentence, this Criminal Appeal is dismissed. 15. The accused-appellant is on bouil. His bail-bond is cancelled and he is directed to surrender in the Court of the Addl. Sessions Judge, Daltonganj, forthwith to serve out his sentence. The Addl. Sessions Judge is also directed to take all necessary steps in this regured.